Under Prop. 36, the third strike would have to be violent or serious before the criminal could receive a 25-to-life sentence, with some major exceptions. If a prior conviction had been for murder, rape or child molesting, for example, the 25-to-life sentence still could be administered regardless of how minor the last offense.
Even those spared a life sentence wouldn't exactly skate. They'd serve double the normal time for the crime. They'd be punished as a two-striker.
Inmates currently imprisoned under the three-strikes law could apply for a sentence reduction if their last strike was nonviolent or non-serious.
There are about 137,000 convicts locked up in state prisons, costing taxpayers nearly $9 billion annually. About 9,000 are third-strikers. The legislative analyst estimates that $70 million could be saved by enacting Prop. 36 — not a lot, relatively, but the state is scratching for every dime.
Michael Romano, director of the Three Strikes Project at Stanford Law School, calculates that almost 3,700 third-strikers have been convicted of nonviolent or non-serious crimes. Of those, around 3,000 would benefit from Prop. 36.
"Many are among our oldest and sickest prisoners, so they're going to cost more" to incarcerate, Romano says. "They're the least likely to commit new crimes when they get out. The single biggest predictor of whether someone is going to commit a crime is age."
The law lecturer adds: "They should be punished, but receiving a life sentence for stealing a pair of socks is not what the voters intended.
"Of course, these people are not innocent. But do we lock up people we're angry with or actually scared of?"
Both. The former is for punishment, the latter for protection. But for many third-strikers, the punishment hardly fits the crime.
Still, Reynolds, the father of three strikes, adamantly opposes Prop. 36.
"If this passes, you're looking at a sure-fire formula for more crime," he says. "You're talking about repeat offenders. They're not going off to never-never land to live happily ever after."
The California District Attorneys Assn. and several law enforcement groups oppose the measure.
"The current law is working well because district attorneys use their discretion appropriately in charging three-strikes cases," the attorneys association asserts in a campaign document. And "judges use their discretion" to reduce felonies and dismiss prior strikes.
Cooley and the district attorneys of San Francisco and Santa Clara already have adopted their own prosecutorial policies similar to Prop. 36. But the ballot measure is needed, Cooley says, so sentencing doesn't vary so widely around the state.
Few laws are perfect. Three-strikes certainly isn't. It needs a little fixing.
Prop. 36 is about ending injustices and wasteful spending.